Constitutional Law

Question 1

Answer 1

Yes, because the statements demonstrate that the building inspector has an attitude toward a certain class of persons that interferes with the proper performance of the obligations of his job.

General Rule =
A Public employee has a First Amendment right to speak on matter of public concern, and may not be discharged for that speech unless the employee’s actions interfere with the functions of the government.

While the building inspector may have been speaking on a matter of public concern - enforcement of the building code and the state of low-income housing, which was the subject of a newspaper story - the statements demonstrated that the building inspector’s attitude was interfering with his job, which was enforcement of the building code.

“I do not even try to get these buildings up to code or to have their owners prosecuted for code violations b/c … people who live there will just wreck them again”

Question 2

The tax that requires newspapers and magazines of general circulation published in the state to be taxed at 20% for alcohol promotions was passed.

High proportion of the advertising revenue of a particular small newspaper within the state came from beer and wine ads. The publisher of the small paper filed suit to have the tax declared unconstitutional.

Unconstitutional?

Answer 2

Yes. The tax unconstitutionally burdens the freedom of the press.

Why?

A tax applicable only to the press or based on the content of a publication will not be upheld absent a compelling justification.

Press and broadcasting companies CAN BE subject to general business taxes.

Question 3

Is the need for revenue a sufficiently compelling interest?

Answer 3

No. Mere need for revenue is not a sufficiently compelling interest.

Question 4

Is promotional advertising by electric utility companies considered a commercial speech?

Answer 4

Yes. This is one of the some commercial speeches subject to a test similar to intermediate scrutiny.

Why? Because it wasn’t misleading or deceptive, and did not concern illegal activity.

Question 5

Commercial speech is NOT protected if it is either:

Answer 5

1) False, misleading, or deceptive, OR
2) Illegal or concerns illegal activity

Question 6

For the gov’t to regulate commercial speech, the four-part analysis needs to be done. The elements are:

Answer 6

1) whether the commercial speech concerns lawful activity and is not misleading;

2) whether there is SUBSTANTIAL gov’t interest in regulating the speech; (meaning, whether the ban would satisfy intermediate scrutiny review)

3) whether the regulation directly advances the government interest; AND

4) whether the regulation is no more restrictive(extensive) than necessary (but still narrowly tailored)

Question 7

A valid commercial speech regulation must be narrowly tailored, but _______________.

Answer 7

Not necessarily the least restrictive alternative.

필요한 수준보다는 더 제한적이지 않아야 하지만, 가장 덜 제한적인 대안을 강구할 필요는 없음

필요한 수준 =/= 최소한의 대안

Question 8

If a university prohibits student religious groups from using campus rooms for religious discussion or worship, what’s the level of of scrutiny require for the ban to pass for it to be constitutional?

Answer 8

Strict Scrutiny, because the the restriction is a content-based restriction. The restriction must be justified by a compelling state need.

Question 9

If there’s a ban on religious discussion or worship, is the ban content-based? or Content-neutral?

Answer 9

Content-based. The ban restricts speech b/c of its content (i.e., based on the subject matter or viewpoint, concerning a particular message)

Question 10

When does a “Content-neutral restriction” occur?

Answer 10

It occurs where a gov’t restriction applies to all expression regardless of the content or viewpoint. For the restriction to be constitutional, it must be reviewed with Intermediate Scrutiny.

Question 11

Is a “buffer zone” law prohibiting leafletters from approaching patients within 35 feet of any abortion clinic in the state narrowly tailored?

Answer 11

No. IT’s too broad a speech restriction. The state could try other measures like targeted injunctions.

But restricting = “more than 10 ppl to stay within 10 feet” is reasonable b/c it could be a barrier to entrance.

Question 12

Regarding a regulation on speech in public forums, the court is more likely to uphold regulatory measures as narrowly tailored if:

Answer 12

the measures attempt to remedy a specific problem at particular facility, rather than imposing a blanket speech restriction statewide.

Question 13

Is obscenity a protected speech?

Answer 13

No.

Question 14

Expression is obscene if:

Answer 14

1) it appeals to prurient interests (Sexually stimulating) –> community/local standard
2) It is patently offensive in its sexual portrayal –> based on state or local law
3) Taken as a whole, the material lacks serious literary, artistic, political, or scientific value –> national standard

Question 15

Can the gov’t limit the amount of contributions that an individual may contribute to a candidate’s campaign?

Answer 15

Yes. However, it MAY NOT limit contribution(like, the amount) to groups that lobby for or against matters before the legislature, b/c the Supreme Court has found that such a law does not serve a sufficiently important interest to outweigh the restraints that it puts on the 1st Am. freedoms of speech and association.

Question 16

When a public employee makes statements in _________________, he is no longer speaking as an ordinary private citizen, and his speech is __________________________.

Answer 16

A capacity pursuant to his official position; not entitled to First Amendment protection.

A memorandum of an official’s findings to his superiors & recommendation that the case be dismissed are made pursuant to his official duties.

Question 17

What does the Establishment Clause enforce?

Answer 17

It prohibits gov’t acts that establish, sponsor, or coerce religion or give preference to one religion over another.

Gov’t generally must remain neutral toward religion and may not coerce individuals to exercise (or refrain from exercising) religion

Question 18

Are city erected billboards (city owned property) traditional public forums?

Answer 18

No. Similarly, city owned buses are also NOT public forums.

The SC held that cities could differentiate between broad categories of speech in accepting advertising on city owned buses(the SC allowed a city to refuse political advertising and accept only commercial advertising), as long as the restriction was viewpoint neutral (does not distinguish based on content) AND it is reasonably related to the gov’t interest.

Question 19

For public forum restrictions to be upheld, they must:

Answer 19

1) be content-neutral;
2) be narrowly tailored to serve an important gov’t purpose
3) leave open adequate, alternative channels of communication (does not need to be the least-restrictive alternative)

Question 20

For Public Forum restrictions, what does it mean by “Content-neutral”?

Answer 20

It means that the restrictions only regulates time, place, or manner of speech

Question 21

For Limited Public forum restrictions to be upheld, they must:

Answer 21

1) be viewpoint neutral; AND
2) reasonably related to legitimate gov’t purpose

Question 22

The Establishment Clause prohibits government action respecting the establishment of religion.

Are prayer and Bible reading in public schools constitutional?

Answer 22

Prayer and Bible reading in public schools are invalid as establishments of religion. This rule extends to prohibit public school officials from having clerics give invocation and benediction prayers at graduation ceremonies.

Question 23

The freedom of speech includes not only the right to speak, but also ______________________.

Answer 23

The right to refrain from speaking or endorsing beliefs with which one does not agree. The government may not compel an individual personally to express a message with which he disagrees, or to endorse a message that significantly affects their expressive viewpoint.

E.g., the education department may not impose state-ordained speech on students by requiring all high school students studying U.S. history to cover their books with a state-supplied book cover that has the state motto “Live Free or Die” on the front and a picture of the state governor on the back.

Question 24

When a city ordinance that restricts demonstrations if there is “annoying, disturbing, opprobrious words and abusive language in such a manner tending to cause a breach of the peace”, what constitutional issue does it entail?

Answer 24

Vagueness! – a law is vague if a reasonable person cannot tell whether speech is prohibited or permitted. (E.g., law prohibiting people from assembling and conducting themselves “in a manner annoying to passerby” is unconstitutionally vague b/c a reasonable person must guess as to what behavior is punishable).

Question 25

Speech includes not only verbal communication but also __________.

Answer 25

conduct that is undertaken to communicate an idea. This is called “Symbolic speech.”

E.g.
Burning U.S. flag – protected symbolic speech
Burning a cross – protected unless intended to threaten
Carrying a U.S. flag upside down through the streets in a privately organized parade – protected.
Public nudity – not protected

Question 26

Gov’t can regulate symbolic speech if:

Answer 26

1) The regulation furthers an important gov’t interest.
2) That gov’t interest is unrelated to suppression of the message (e.g., interest in protecting the integrity of the flag IS related to the regulation that charges someone who treats the flag contemptuously)
3) The impact on speech is no greater than necessary to further the important gov’t interest.

Question 27

Property that is protected by the copyright laws vs. Freedom of speech (public importance of the content)?

Answer 27

Copyright wins

Question 28

Are charitable solicitations for funds in residential areas within the protection of the First Amendment?

Answer 28

Yes.

E.g., A city ordinance that prohibit the door-to-door solicitation of contributions by charitable organizations that did not use at least 75% of their receipts for charitable purposes was found unconstitutional.

Question 29

A state statute that makes it unlawful to willfully permit the health of a child to be endangered. The statute also makes it unlawful to willfully permit a child to be placed in circumstances that endanger the child’s life or health.

Local prosecutor brought charges against parents who brought their child to their church’s religious service in which venomous snakes were passed around. Statute constitutional?

Answer 29

Yes, because there are no facts here suggesting that the statute is really a regulation of general conduct and not being applied only to interfere with religion.

The Free Exercise Clause prohibits government from punishing religious belief. The Clause prevents government from punishing conduct merely because it is religious and from regulating conduct for the purpose of interfering with religion.

However, the Clause does not prohibit government from regulating general conduct, even if the regulation happens to interfere with a person’s ability to conform conduct to sincerely held religious beliefs.

Question 30

What are the two Clauses to think about when freedom of religion is at issue?

Answer 30

The Free Exercise Clause,
The Establishment Clause

Question 31

For symbolic speech, what is an example of the second prong, “gov’t interest is unrelated to suppression of the message”

Answer 31

Burning of a social security card, when the gov’t’s interest is to protect creditors against fraud and provide for a national system of identification are unrelated.

Burning of the U.S. flag and the gov’t’s interest is to prevent contemptuous use of the flag are obviously related, so restriction on the flag is unconstitutional.

Question 32

Regarding Obscenity & sexually oriented speech, are zoning ordinances allowed?

Answer 32

Yes. Erogenous zoning is permissible.

Question 33

Which of the following is considered protected speech under the First Amendment?

• Fighting words
• Commercial speech
• Obscenity
• Speech creating a clear and present danger of imminent lawless action

Answer 33

Commercial speech.

All others are forms of unprotected speech, such that content-based restrictions are allowed.

Question 34

Under the clear and present danger test, speech may be punished or banned when(meaning, not protected under the 1st Am):

Answer 34

1) It is directed to producing or inciting imminent lawless action; and
2) is likely to produce such action

Question 35

When can the gov’t limit rights of speech in a public forum?

Answer 35

Only when there is a serious and imminent threat to the public order. It can restrict the speech of a speaker because of an unruly audience only in the rare case when the police are absolutely unable to control the crowd.

Question 36

Does the Constitution protect true threats, defined as speech meant to communicate an intent to place a person in fear of bodily harm.

Answer 36

No.

Question 37

Under current Supreme Court precedent, the First Amendment Free Exercise Clause __________.

Answer 37

prohibits government from punishing conduct just because it is religious.

It is NOT TRUE that it prohibits ANY gov’t regulation that interferes with religious practices. As long as there is general applicability, a religious activity CAN be prohibited no matter how much it interferes.

Question 38

Is Congress’s power to regulate interstate commerce exclusively federal? (meaning, states have no power to regulate any aspect of interstate commerce)

Answer 38

No. States DO have power to regulate aspects of interstate commerce, as long as they do not discriminate against out-of-state business or unduly burden interstate commerce and Congress has not preempted the field of regulations.

This means states may regulate interstate commerce subject to the Dormant Commerce Clause.

Question 39

Would a state law prohibiting out-of-state wastes from being accepted in private landfills be prohibited by the Commerce Clause?

Answer 39

Yes… but why? Doesn’t it fall under the “important state interest” exception? (health and safety of its citizens)

Maybe it creates a huge burden to neighboring states by making them detouring the waste flow or sth?

Question 40

The Constitution applies only to gov’t action. However, private conducts need to comply with the Constitution under the situations where the Entanglement Exception is applied. What are the key examples?

Answer 40

i) Courts cannot enforce racially restrictive covenants.

ii) There is state action when the government leases premises to a restaurant that racially discriminates.

iii) There is state action when a state provides books to schools that racially discriminate.

(Note that first three involve racial discrimination)

iv) There is state action when a private entity regulates interscholastic sports within a state (Tennessee Athletic Association HAD TO provide Due Process b/c the State of Tennessee had delegated regulatory authority to the TAA + almost all the money came from public schools + schools almost always met on public school premises) vs. NCAA? (NCAA operates all over the country whereas TAA operates in only one state).

Question 41

The Constitution applies only to gov’t action. However, private conducts need to comply with the Constitution under the situations where the Entanglement Exception is applied. What are the key examples that DO NOT fall under the exception?

Answer 41

i) There is NO state action when a private school that is over 99% funded by the government fires a teacher because of her speech (b/c the school wasn’t encouraging the violation of 1st Am.)

ii) There is NO state action when the NCAA orders the suspension of a basketball coach at a state university.

(Note that first two involves First Amendment Due Process)

iii) There is NO state action when a private club with a liquor license from the state racially discriminates (liquor license does not prove enough entanglement)

Question 42

Define: Rational Basis review(test)

Answer 42

Under the rational basis test, a law is upheld if it
is Rationally related to a Legitimate government purpose.

= the gov’t prevails so long as its action is rationally related to a legitimate gov’t purpose.

• Doesn’t insist the ACTUAL purpose be a legitimate one. So long as there is conceivable legitimate purpose, that’s good enough.
• Rationally –> means chosen just has to be a rational, reasonable way
• Gov’t usually wins under this review & the CHALLENGER has the burden of proof

Question 43

Define: Intermediate Scrutiny

Answer 43

Under intermediate scrutiny, a law is upheld if
it is Substantially related to an Important government purpose.

• Gov’t’s goal must be more than sth that’s legitimate for the gov’t to do.
• ONLY looks at the ACTUAL purpose. Whether the Actual purpose is an important one.
• Means used by the gov’t are a very good way of achieving the objective (need not be least restrictive means = the best way)
• the GOVERNMENT has the burden of proof.

Question 44

Define: Strict Scrutiny

Answer 44

Under strict scrutiny, a law is upheld if it is Necessary to achieve a Compelling government purpose.

• Gov’t’s objective is Compelling(crucial and vital.)
• ONLY looks at the ACTUAL purpose. Whether the Actual purpose is compelling.
• Means have to be necessary to achieve the goal (MUST be least restrictive means)
• Gov’t usually loses
• the GOVERNMENT has the burden of proof

Question 45

The Privileges or Immunities Clause prohibits states from denying their (OWN) citizens the rights of national citizenship, which includes:

Answer 45

• the right to travel
• the right to petition Congress for redress of grievances
• the right to vote for federal officers; and
• the right to enter public lands.

Question 46

What is the test that allows a statute that prohibits discrimination against nonresidents(who are citizens of the US) with respect to essential activities (e.g., pursuing a livelihood) to pass the violation of the P&I Clause of Article IV?

Answer 46

(i) the discrimination is closely related to a substantial state purpose, and
(ii) less restrictive means are not available.

Question 47

For there to be a fair process (procedural due process), what procedures are required?

Answer 47

Balancing test:
1) Importance of the interest to individual
2) Ability of procedures to increase accuracy
3) Government’s interest

Question 48

The Fourteenth Amendment applies only if there is state action by a state or local government, government officer, or private individual whose behavior meets the requirements for state action. What is one of those requirements?

Answer 48

When state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens.

However, there must be some sort of affirmative act by the state approving the private action; it is not enough that the state permits the conduct to occur (partial funding, accreditation, or regulation)

Question 49

For the actions of a private entity to satisfy the “state action” requirement, the state must be _________ in the private entity.

Answer 49

Significantly involved (meaning, merely granting a license or providing essential services is insufficient)

Question 50

Fact Pattern:
State funded university + fired employee claiming freedom of speech

What’s the issue?

Answer 50

“State action” under the Fourteenth Amendment.